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Inside Internal Controls

News and discussion on implementing risk management

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Intellectual Property, IP

Ontario court decides ground-breaking online copyright case

Trader Corp v CarGurus Inc, a recent Ontario Superior Court decision, breaks a staggering amount of new ground in Canadian copyright law.

 

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Availability of non-infringing product is relevant in determining profit recovery for infringing activities

In a recent decision, the Federal Court of Appeal determined that the Federal Court erred in law by rejecting the relevance at law of any available non-infringing product and failed to adequately consider the evidence adduced as to the ability and willingness of three suppliers to provide non-infringing product.

 

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Protecting trade secrets using non-disclosure agreements

In Canada, the issue of whether an NDA may be an unenforceable restraint of trade has been explored in the employment law context, however, there has been very little discussion as to whether an NDA could be considered a restraint of trade in transactions between two or more businesses. There has also been little discussion in Canada as to the distinction between trade secrets and ordinary confidential information. As such, US case law may provide some guidance.

 

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What’s in a slogan? Federal Court issues interlocutory injunction in trademark infringement case

The Federal Court granted an interlocutory injunction restraining Sears from using the slogan “There is no reason to buy a mattress anywhere else”. Sleep Country owns two Canadian trademark registrations for the slogan “Why buy a mattress anywhere else?”. The slogan, and its accompanying musical jingle, have been used by Sleep Country in television, print, radio, and online advertising and promotional campaigns since 1994.

 

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Where does a cause of action for patent infringement arise?

In Apotex Inc. v Astrazeneca Canada Inc., 2017 FCA 9, the Court of Appeal had to interpret section 39 of the Federal Courts Act in order to determine the appropriate limitation period for those patents that issued before a six–year limitation period was established by section 55.01 of the Patent Act in 1993.

 

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Significant changes to the Canadian patent system

Changes are coming swiftly, as the federal government moves to implement the Comprehensive Economic and Trade Agreement just days after it was signed by Prime Minister Trudeau in Brussels at the end of October 2016. These changes will significantly impact biologic/pharma patents in two major ways.

 

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Why do so many practitioners misunderstand risk?

My apologies in advance to all those who talk about third–party risk, IT risk, cyber risk, and so on. We don’t, or shouldn’t, address risk for its own sake. That’s what we are doing when we talk about these risk silos. We should address risk because of its potential effect on the achievement of enterprise objectives.

 

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Copyright year in review 2016

This article highlights noteworthy Canadian copyright law decisions and developments from 2016.

 

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Selecting software to help manage user access risk

I believe software is essential in managing user access risk, not only for SOX but also for other business risks. In fact, the potential harm from inappropriate access is typically greater for other business risk (such as the possibility of disruption of activities such as revenue generation or manufacturing, reputation risk, and the protection of valuable intellectual property) than it is for SOX.

 

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Not–for–profits and charities: 4 New Year’s resolutions

Many people feel that New Year’s resolutions are passé, particularly since so many resolutions go unachieved each year. But, a resolution is essentially a plan to tackle something of importance, and planning is often half the battle. The following are 4 resolutions that can help strengthen charities and other not–for–profits in 2017.

 

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Cybersecurity: CSA issues new guidance

Cybersecurity is top of mind for corporate boards and securities regulators alike. On September 27, 2016, the Canadian Securities Administrators (CSA) issued CSA Staff Notice 11-332 – Cyber Security (2016 Notice). The 2016 Notice updates the CSA’s previous notice on the same topic, CSA Staff Notice 11-326 Cyber Security for reporting issuers, registrants and regulated entities.

 

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Cyber risk and audit

Clearly, cyber risk and audit is the topic of the day, if not the year and decade. The leader of Protiviti’s IT audit practice, David Brand, has weighed in with “Ten Cybersecurity Action Items for CAEs and Internal Audit Departments”. He has some valuable ideas that merit consideration, not only by internal auditors, but by security professionals, boards, risk officers, and more broadly among the executive group. I will let you read his post and suggested action items.

 

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Canadian Competition Bureau releases significant updates to its IP Enforcement Guidelines

On March 31, 2016, the Competition Bureau released revised Intellectual Property Enforcement Guidelines (IPEGs). These IPEGs reflect incremental changes to the draft version released for consultation last year. Most notably the new IPEGs provide further guidance on (i) pharmaceutical patent litigation settlements, (ii) product switching (also known as “product hopping”), (iii) collaborative standard setting and standard essential patents, and (iv) patent assertion entities.

 

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The art of restraint

A restrictive covenant is a class of legal “promise” imposing a restriction on one party for the benefit of another. When drafted correctly, restrictive covenants are an invaluable tool to protect your business.

 

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Seggie v. Roofdog Games Inc.: Who is the author of videogame software for copyright purposes?

Last December, the Quebec Superior Court issued its decision in Seggie v. Roofdog Games Inc.[1], in which it attempted to clarify the notion of co-authorship (and by implication, copyright ownership) of a videogame. This case marks the first time that the issue of authorship of a videogame was ever considered by a Canadian court (and one of the very few Canadian cases to consider authorship of software more generally).

 

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